China

International focus

The context of FOI in China

Although the context of Freedom of
Information in People’s Republic of China is arguably unique, the key
issues surrounding the implementation of FOI regime mirror those in other countries.
This is because, it is argued, China’s regime alongside many other new regimes derives
from the recent international tendency
to implement transparency, rather than from a long-standing culture of liberal
democratic tradition.­­ Instead of being focussed on filling an accountability
deficit and enhancing democracy, the concept of Chinese FOI is from the
viewpoint of enhancing information flow, a more effective bureaucracy and a
drive to fight corruption.

Weibing Xiao also argues that China’s
model of transparency emphasises proactive disclosure (‘ push model’) over
citizen access (the ‘pull model’) which is in keeping with technological
advances. China’s
state agencies now have websites, and official spokespeople. Further, China’s
massive population could potentially overwhelm the state bureaucracy with
requests; proactive disclosure ‘may have reduced’ the use of citizen-initiated
requests. Lastly, citizen journalists and alternative news sources have played
key roles in reporting crises like the Sichuan
earthquake and the tainted-milk scandal. ‘Government officials will play huge financial
and public-trust costs for concealing information.’ They realise damaging
rumours can be quashed with reliable official information release.

History

During China’s general re-alignment in the
1980s under Deng Xiaoping’s leadership, political endorsement of village-level
decision making led to Openness of Village Affairs legislation. This eventually
led to implementation of FOI, namely the Regulations of the People’s Republic
of China
on Open Government Information.

Although the Regulations came into force in
2008, there had already been provincial FOI, with Guangdong as the first Chinese province to
introduce an FOI regime in 2002. Particularly active has been the province of Shanghai, where Shanghai Municipal
Provisions on Open Government Information was implemented in 2004 and which has
published monthly FOI reports with detailed statistics on number of requests. ­­­­­­­­­­­

Regulations

In 2007, after a five-year consideration
period, Chinese central government introduced the Regulations of the People's
Republic of China
on Open Government Information, which came fully into force on 1 May 2008.

Four main objectives of the Regulations can
be described as follows:

1) Guaranteeing
citizens, legal persons and other organizations to obtain government
information legally

2) Improving the
degree of transparency in governmental work

3) Promoting the
exercise of administrative powers and functions in accordance with the law

4) Fully fulfil the
service function of government information to the people’s production, life,
economic and social activities

Requests may be submitted either orally or
in written form and no grounds are required for the request. Government
agencies should give a response immediately to the requesters. If a response
cannot be given immediately, government agencies should reply to the requesters
in 15 working days after they received the requests.

Submitting a request is itself free of
charge, and fees for access should be limited to the cost for searching,
photocopy, postage and others based on the costs actually incurred in providing
the information. However, requesters may be asked to provide a reason for
asking for the information, and while the definition of an acceptable reason is
broad, the fact that the provision exists (and didn’t under previous local
government FOI) means the Regulations fail to meet internationally-recognised
best practice.

The Regulations require the government
agency to publish an annual FOI report before 31 March of each year. The annual
report should include particulars of proactive disclosure, requests received,
granted, refused, appealed, fees charged and waived, and problems confronted
and recommendations for reform.

The Regulations include much broader
requirement for proactive disclosure than FOI laws elsewhere. A minimum
standard has been set to oblige
government departments to firstly create/collate, and then actively release
information (within 20 days of the information being generated or changed).
Information that satisfies any of the following criteria is required to be
released:

Information that involves the vital interests of citizens or
organisations

Information that ‘needs to be extensively known’ or
participated in by the public

Information that shows the structure, procedures and functions
of government agencies

Recent developments

According to Piotrowski et al., major
obstacles for FOI in China
include improper designation of the supervision office, delay of the catalogues
and detailed guides for FOI implementation, and inadequate facilities and
equipment for the public to access information. Xiao cites broad and vague
exemptions as another failing.

On data protection sector, the new Tort
Liability Law, which came into force 1 July 2010, introduced citizen’s right to
privacy in the Chinese legal framework for the first time.

How is FOI working?

State level

Government agencies publish their annual
FOI reports quite regularly, but there is no comprehensive FOI report at
national level. The closest thing so far for comprehensive national FOI report
is the report of the General Office of the State Council, which covers
particulars of proactive disclosure, FOI training and survey. The report does
not deal with particulars of access requests.

However, individual agencies have published
their FOI reports. In 2008, of the ministries and commissions under the State
Council, the National Development and Reform Commission received the largest
number of requests, 411. Between the date of commencement of the FOI
Regulations on 1 May 2008 and 31 December 2008, a total of 890 requests were
received by the 22 State ministries and commissions. According to these
reports, there was only 12 cases of administrative reconsideration of agency
decisions on access request and 1 FOI lawsuit in 2008. Of agencies outside the
State Council, most requests in 2008 were aimed at the State Administration for
Industry and Commerce, 2778.

According to Ben Wei, Chinese citizens use
FOI for information

to examine
whether or not their interests had been violated (enterprise restructure, house
demolition and land use)

to learn more
about how government agencies processed their business affairs

to solve their
outstanding issues with the government, such as housing takeovers before and
during the Cultural Revolution

During the first six months after
implementation of the FOI Regulations, legal professionals were the most
frequent requesters in China.

Province level

At the province level figures of FOI
requests received and applications made for reconsiderations have been
completely different. Between 1 May and 31 December 2008, there was a total
number of 88,056 information requests received by the 15 provinces. Most
requests was received by Yunnan province (17,955),
whereas in Gansu
province only 6 applications were made. In addition, in Shanghai only (where FOI has been in force since
2004), 683 applications were made in 2008 for administrative reconsiderations,
100 more than the total figure of 2004-2007.